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Local authorities run the risk of unlawful discrimination when seeking to evict disabled tenants who breach their tenancy agreement for a disability-related reason, the Court of Appeal has ruled.

The warning came after a council tenant succeeded in using the Disability Discrimination Act 1995 (DDA) (1), to defend himself against a mandatory possession order from Lewisham Council for sub-letting his council home. The Disability Rights Commission (DRC) intervened in the case because of its legal importance.

The case demonstrates the extent to which the premises provisions of the DDA impact upon, and operate within, housing law. Previous cases taken under the DDA have challenged possession orders where the courts have discretion to make an order. This is the first time a case has dealt with a possession order where it is mandatory for the court to make an order.

Mr Malcolm, who has schizophrenia, became a Lewisham Council tenant in January 2002 and had exercised his right to buy in March. The process of completion was delayed over two years. In April 2004 it was discovered that Mr Malcolm had stopped taking his medication and a month later he lost his job.

It was in these circumstances that Mr Malcolm, in May 2004, asked a lettings agent to sub-let his flat, without having sufficient appreciation of what he was doing and the consequences of his actions. The flat was sub-let in June 2004, therefore breaching his secure tenancy and losing his security of tenure.

In December 2004, Lewisham issued proceedings for possession. However, evidence given in court, was that the housing enforcement team were unaware of his mental health problems, nor that his social worker was concerned about his well being.

Lady Justice Arden ruled that where it is mandatory for the courts to issue possession orders to evict tenants who breach the terms of a secure tenancy agreement, Lewisham Council were also under a duty, under the Disability Discrimination Act 1995 (DDA), to examine whether the breach could be related to Mr Malcolm’s disability. If the reason for the breach is disability related then, unless it can be justified under the DDA, it will be unlawful to evict.

Agnes Fletcher, Director of Policy and Communications for the DRC, said:

“This ruling is welcome as it gives disabled tenants anti discrimination protection if they breach their tenancy agreement because of an impact arising from their disability.

“As Mr Malcolm’s case vividly illustrates, bad internal communications meant that the issues around his tenancy weren’t dealt with appropriately, which led to discriminatory actions by the Council. Councils are under a duty to promote equality for disabled people and ensuring better communications and anti discrimination policies are in place is fundamental to achieving that.”